Fincke v. Peeples

476 So. 2d 1319, 10 Fla. L. Weekly 2173
CourtDistrict Court of Appeal of Florida
DecidedSeptember 18, 1985
Docket84-562, 84-590, 84-691, 84-1063, 84-792 and 84-1083
StatusPublished
Cited by10 cases

This text of 476 So. 2d 1319 (Fincke v. Peeples) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fincke v. Peeples, 476 So. 2d 1319, 10 Fla. L. Weekly 2173 (Fla. Ct. App. 1985).

Opinion

476 So.2d 1319 (1985)

Mabel A. FINCKE, R.N., Chicago Insurance Company, a Foreign Corporation, the Good Samaritan Hospital Association, Inc., a Florida Corporation, and the Florida Medical Malpractice Joint Underwriting Association, Appellants,
v.
Shirley PEEPLES, As Personal Representative of the Estate of Thomas Peeples, Jr., Deceased, Pierce Weinstein, M.D., Etc., et al., Appellees.
Pierce WEINSTEIN, M.D., Weinstein, Hooper, Johnsen, Szmukler & Carrillo, P.A., and Florida Physicians' Insurance Reciprocal, Appellants,
v.
Shirley PEEPLES, As Personal Representative of the Estate of Thomas Peeples, Jr., Deceased, Appellee.
GOOD SAMARITAN HOSPITAL, the St. Paul Insurance Company, Mabel Fincke, and Chicago Interstate Insurance Company, Appellants,
v.
Shirley PEEPLES, As Personal Representative of the Estate of Thomas Peeples, Jr., Deceased, Pierce Weinstein, M.D., Etc., et al., Appellees.

Nos. 84-562, 84-590, 84-691, 84-1063, 84-792 and 84-1083.

District Court of Appeal of Florida, Fourth District.

September 18, 1985.
Rehearing and Stay Denied November 7, 1985.

*1320 Larry Klein of Klein & Beranek, P.A., West Palm Beach, for Pierce Weinstein, M.D., Weinstein, Hooper, Johnsen, Szmukler & Carrillo, P.A., and Florida Physicians' Ins. Reciprocal.

Edna L. Caruso of Edna L. Caruso, P.A., and Montgomery, Lytal, Reiter, Denney & Searcy, P.A., West Palm Beach, for Shirley Peeples, etc.

Steven R. Berger of Steven R. Berger, P.A., and Bernard & O'Brien, Miami, for Good Samaritan Hosp., The St. Paul Ins. Co., Mabel A. Fincke, R.N., and Chicago Interstate Ins. Co.

HERSEY, Chief Judge.

Appellant health care providers and their insurers appeal a malpractice award of $1,018,019.10 and an award of costs and attorneys' fees of $335,857.35. We affirm.

On November 16, 1981, Bruce Fishbane, M.D., an orthopedic surgeon, performed surgery on the right knee of seventeen-year-old Thomas Peeples to repair a torn medial meniscus. Pierce Weinstein, M.D., was the anesthesiologist. The operation took approximately two hours, without complication, after which Peeples was taken to the recovery room by Fishbane and Weinstein. Fishbane said that when they arrived, Weinstein placed his hand over the endotracheal tube to determine the depth of Peeples' respiration, and was about to extubate Peeples when Fishbane left the room. At that time, Peeples was not awake, moving, or bucking or fighting the tube. Fishbane left, spoke with Peeples' family in the waiting area, and returned to the recovery room a few minutes later to find that Peeples had been extubated. He made notes on the operation for ten or fifteen minutes, during which time Weinstein was not in the room but Mabel Fincke, R.N., was. Fincke told Fishbane that Peeples was sleeping and everything was fine, so he left. Fishbane was on the fourth floor with another patient when he heard over the PA system that there was a cardiac arrest in the recovery room. When he arrived three to five minutes later, Peeples had been reintubated by an anesthetist nurse, and his heart rate was normal but his pupils were nonreactive. Fincke told *1321 Fishbane that another patient had been wheeled into the recovery room and she had been taking care of him for several minutes when she realized that Peeples' heart had stopped. Peeples never regained consciousness and died on November 29, 1981.

Weinstein said that his notes indicated that Peeples, while in the recovery room, "Bucked and coughed on tube ... Turned head — pulled out because patient could not tolerate tube." This was written at approximately 11:30 that morning. Weinstein later wrote, "patient admitted to recovery room at 10:50. At that time patient was reacting to endotracheal tube, bucking and coughing against tube." He said that if a patient does not so react, then he is still unconscious and unable to breathe on his own and the tube should not be removed. If the tube is removed and the patient falls back into the anesthesia, he might stop breathing. To prevent that, the recovery room nurse should constantly monitor the patient. When Weinstein left the recovery room after removing the tube, Peeples' airway was open and his oxygen supply was adequate.

Nurse Fincke testified that Weinstein removed the tube as soon as he wheeled Peeples into the recovery room. At that time Peeples was not moving any limbs, had shallow breathing and had no consciousness whatsoever. Fincke put an oral airway into Peeples' mouth after the tube was removed, "and if he showed any degree of consciousness, he would have resisted the oral airway being placed in his mouth."

The trial court denied appellants' motion in limine to exclude testimony concerning previous complaints of Weinstein's premature extubation. The following testimony was introduced on that issue:

Nurse Fincke testified:
Q But you knew the patient had been extubated prematurely, didn't you?
A Yes, sir.
Q Does that happen often? Did that happen often with Dr. Weinstein? Was that a problem so to speak, in the recovery room? Go ahead and answer the question. Don't be nervous about it.
A Yes.
Q Had there been any complaints made to the administration in regard to Dr. Weinstein by you or any members of the recovery room staff?
A Yes.
Q To whom did you make your complaints?
A To Dr. Carrillo, the head of the anesthesiology.
Q On what occasions or how often did these complaints occur prior to the death of the young Peeples boy?
A I don't know, sir.
... .
Q But it was with some degree of regularity; right?
A Yes, sir.
Q What would Dr. Carrillo say to you when this occurred; in other words, when you made these complaints to him?
A He already had been told on previous occasions about it, and he said he would talk to Dr. Weinstein.
Nurse Kepke testified:
Q And over coffee, did you and Mrs. Fincke and the other nurses talk about Dr. Weinstein and historically what he would do so far as extubating patients are concerned?
... .
A It was mentioned, yes.
Q Tell us what was mentioned. Don't be nervous about it.
A We felt that patients were extubated too soon at times.
... .
Q All right. Did you discuss this problem with Dr. Weinstein with Mrs. Ford before this incident occurred?
A I believe we did. I'm —
Q Yes, ma'am. Do you have a belief of whether or not these complaints were reported to anesthesia, the Anesthesia Department?
*1322 A In a case like that, if we had a complaint, Mrs. Ford would go to anesthesia with it.
Q Nothing was ever done about it, was it, Mrs. Kepke?
A Not that I know.
Nurse Barnes testified:
Q Do you have any recollection of any complaints in regard to Dr. Weinstein and the recovery room practices that you experienced or that were experienced by the nurses there?
A Other than conversations between us and our head nurses?
Q What was that conversation, please, ma'am?

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Bluebook (online)
476 So. 2d 1319, 10 Fla. L. Weekly 2173, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fincke-v-peeples-fladistctapp-1985.